Getting nation's reform back on track

Getting nation's reform back on track

Todung Mulya Lubis, Lawyer, Jakarta

History opened the door to democracy for this nation in 1945
when the founding fathers agreed to proclaim it as the Republic
of Indonesia. Despite heated debate on the form and system of
government and the guarantee of human rights, the spirit to build
democracy was ablaze in their hearts.

A reading of the report on the meeting of the drafting of the
1945 Constitution shows an amazingly strong spirit of democracy.
Unless a consensus could be achieved, the opinion gaining the
majority of votes would be the opinion agreed upon.

One of the drafters, Supomo, who did not quite agree to the
concept of human rights, finally accepted its formulation in the
body of the 1945 Constitution. He also accepted the 1949
Constitution and the 1950 Provisional Constitution, both laden
with a guarantee of human rights.

The date July 5, 1959 marked our entrance into "guided
democracy," followed later by "Pancasila democracy". These two
eras were an obvious negation of democracy. When democracy is
followed by an epithet, it loses its significance.

Examples of how democracy had been negated are the appointment
of a life-long president, the appointment of members of the House
of Representatives, the disbanding of political parties, the ban
on newspapers, the entry of the military into political parties,
the floating mass and the application of the sole principle.
Despite these signs, our leaders have denied that Indonesia is
authoritarian.

An authoritarian government, however long, can never be able
to run well and effectively because power corrupts and, more
importantly, it has no opposition. Hence, its power will decay
and eventually collapse.

Following the demands for an overhaul of the political system,
this transitional government must lay the foundation for a future
characterized by better democracy, participation and prosperity,
to be supported by law supremacy. To this end, a new Constitution
would be the primary condition -- a new social contract between
the people and the state.

A group called the Forum for Democratic Reform has spelled out
several core issues in this necessary overhaul:

o Constitutional and legislative reform in respect to the
legislative and executive institutions, to support a democratic
transition;

o Regional autonomy to guarantee inclusive political
participation and effective public administration and the
implementation of development throughout Indonesia;

o Redefinition of the civilian-military relationship to ensure
the supremacy of elected representative agencies;

o Empowerment of civil society, either as watchdogs or as the
locomotive of a democratic government;

o Intensified active participation of women in politics and
society;

o A discussion on fundamental gaps and restlessness in society
as a result of social economic tumult and inter-religious
suspicion.

The First, Second and Third Amendments to the 1945
Constitution are not ideal but, at least, the 1945 Constitution
is no longer held sacred. Several articles may be considered a
response to the demand for democracy; for example, Article 7 in
the First Amendment, which reads: "The President and the Vice
President will be in office for five years and later can be
reelected for the same office, but only for one term."

Then Article 6A (1) of the Third Amendment formulates: "The
President and the Vice President shall be, as a pair, directly
elected by the people."

Admittedly, the ad hoc committee, which formulates the
amendment to the 1945 Constitution, seems to have captured the
demand for democracy. However, if these articles are linked with
other articles, we will see that the ongoing amendment to the
Constitution has yet to be accompanied by a clear foundation or
paradigm in Constitutional Law.

These amendments have been introduced only in a patchy fashion
and many have been based on short-term political interests. The
chapter on human rights in the Second Amendment clearly shows a
political compromise to protect certain political interests.

Articles on the impeachment process show that the drafters of
the amendment do not realize the implication of these changes. It
is evident that many no longer trust the capability of the ad hoc
committee of the People's Consultative Assembly (MPR) to
undertake this amendment, especially because process-wise, these
amendments have been made in an elitist, not participatory,
mechanism. An elitist process of amendment will fail to arouse
people's sense of ownership.

The demand that a Constitutional Commission be established is
a demand not merely intended to avoid a political horse trade and
the lack of clarity of the Constitutional Law paradigm among
members of the ad hoc committee, but because every new
Constitution needs a process that involves the public. In short,
a new Constitution will need public support. That's why, in
Thailand, South Africa and the Philippines, for example, the
people were intensively involved.

In Thailand, members of its constitution commission were
elected to represent each province and they worked with a number
of experts in formulating the framework and the content of the
new constitution. This process took place ceaselessly with a
medium of communication understood by the people and not in an
esoteric language.

The Thai constitutional commission worked for 240 days and
despite this relatively short period, the commission could come
up with a very comprehensive new constitution with over 300
articles regulating not only the executive, legislative and
judicial institutions, but also human rights, the general
election commission, the human rights commission, the ombudsman,
the anti-corruption commission, the state audit agency and many
other things.

The comprehensive nature of this new Constitution is expected
to prevent constitutional devoid, a condition which will require
an interpretation from the Supreme Court.

The above article is adapted from the writer's presentation
at ...